Related Causes of Action
| Author | Roger McConchie; David Potts |
| Profession | Member of the Bars of British Columbia and Alberta/Member of the Bar of Ontario |
| Pages | 899-920 |
C H A P
T
E R
T
H I R
I
Y - I W O
I
Related
Causes
of
Action
A.
INJURIOUS FALSEHOOD
The
tort
of
injurious falsehood consists
of the
malicious publication
of a
falsehood
concerning
the
plaintiff
that leads other persons
to act in a
man-
ner
that causes actual loss, damage,
or
expense
to the
plaintiff.
Injury
to
reputation
is not a
necessary element
to
this tort.
Manitoba
Free
Press
v.
Nagy
(1907),
39
S.C.R. 340.
NR
Developments Ltd.
v.
Thomas,
[2002]
B.C.J.
No.
971,
per
Melnick
J. at
para.
62
(S.C.).
Renger
v.
Vancouver
(City),
per
Romilly
J. at
paras.
54-59.
Janssen-Ortho
Inc.
v.
Amgen
Canada Inc., [2003]
OJ.
No.
2158,
per
Nord-
heimer
J. at
para.
57
(S.C.J.).
Claims
for
injurious falsehood
often
arise
in the
context
of
comparative
advertising. However, courts
are
reluctant
to
interfere
in the
marketplace
unless comparative advertising
is
clearly
unfair.
Purolator
Couriers
Ltd.
v.
United
Parcel
Service Canada
Ltd.
(1995),
60
C.PR.
(3d)
473
(Ont. Gen.
Div.).
Proof
of
malice
is
crucial.
Boehringer
Ingelheim
(Canada)
Ltd.
v.
Bristol-Myers Squibb Canada
Inc.
(1998),
81
C.RR.
(3d) 114,
83
C.RR.
(3d)
51
(Ont. Gen.
Div.).
Proof
of
malice
is
satisfied
by
proof
of
reckless
indifference
to the
truth.
Willful
blindness
amounts
to
malice. Actual malice
in the
sense
of a
prede-
termined intention
to
injure
the
plaintiff
or his
property need
not be
proved.
899
900
CANADIAN
ACTIONS
Manitoba
Free
Press
v.
Nagy
(1907),
39
S.C.R.
340.
The
tort
may
also
be
characterized
as
trade libel, commercial disparage-
ment, slander
of
title,
or
malicious falsehood,
depending
on the
context
of
the
publication.
George
Cluthe
Manufacturing
Co. v. ZTW
Properties
Inc. (1995),
23
O.R. (3d)
370
(Gen. Div.), leave
to
appeal
to
Ontario Court
of
Appeal granted;
by
con-
sent endorsement
of
Court
of
Appeal, appeal
was
deemed abandoned
as
moot (1997),
38
O.R. (3d)
319
(C.A.).
Frank
Flaman
Wholesale
Ltd.
v.
Firman
(1982),
20
C.C.L.T.
246
(Sask.
Q.B.).
The
plaintiff
may sue for
interference with
any
potential advantage,
including
those
of a
non-commercial nature.
A
common claim, however,
is
that
the
injurious falsehood amounts
to a
disparagement
of the
plaintiff's
property,
products, business,
or
services which
affects
their marketability.
The
plaintiff
has the
onus
of
proving that
the
statements were
false;
that
the
defendant
acted maliciously
with
intent
to
cause injury without
lawful
excuse;
and
that actual economic loss
has
occurred
or
will occur
as a
result.
A
plaintiff
or its
products must normally
be
identified
by
name
in the
impugned publication,
but
identification
by
implication
may be
sufficient,
such
as
where
the
plaintiff
enjoys almost exclusive dominance
of the
market.
Church
&>
Dwight
Ltd.
v.
Si/to
Canada
Inc. (1994),
22
C.C.L.T.
(2d)
304
(Ont.
Gen.
Div.).
In
Ontario,
the
common
law
tort
has
been modified somewhat
by the
Act,
R.S.O.
1990,
c.
L.12,
section
17,
which provides that
in an
action
for
slander
of
title, slander
of
goods,
or
other malicious
false-
hood,
it is not
necessary
to
allege
or
prove special damage
if the
falsehood
is
calculated
to
cause pecuniary damage
to the
plaintiff
and is
published
in
writing
or
some other permanent form
or if the
falsehood
is
calculated
to
cause pecuniary damage
to the
plaintiff
in
respect
of any
office,
profession,
calling, trade,
or
business.
In
this particular context (that
is,
proof
of
dam-
ages)
the
meaning
of
"calculated"
is
"fitted,
suited, apt; proper
or
likely to."
Hudson
Bay Co. v.
Beaumark
Mirror
Products
Inc.
(1987),
13
C.I.PR.
86 at 91,
15
C.P.R.
(3d)
38
(EC.T.D.).
R.
v.
Hill
(1976),
33
C.C.C. (2d)
60
(B.C.C.A.).
Alberta
(Attorney
General)
v.
Interwest
Publications
Ltd.
(1990),
73
D.L.R.
(4th)
83 at 98,
[1990]
5
WWR.
498,
58
C.C.C. (3rd)
114
(Alta.
Q.B.).
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